Vacating a default.

Practice point: An affidavit of merit is required in support of the motion, pursuant to CPLR 5015(a)(1).

Students should note that if the motion is denied for want of the affidavit, a second motion cannot be made on the same grounds as the first.

47 Thames Realty, LLC v. Robinson, NY Slip Op 05225 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is in pari delicto.

Account stated.

Practice point: An account stated is an agreement between parties to an account based on prior transactions between them with respect to the correctness of the account items and balance due.

Students should note that the agreement may be express or implied from the retention of an account rendered for an unreasonable period of time without objection.

Fleetwood Agency, Inc. v. Verde Elec. Corp., NY Slip Op 05224 (2d Dept. 2011).

Here is the decision.

Monday's issue is vacating a default.

Statute of frauds.

Practice point: A quantum meruit recovery is not precluded if there is a sufficient memorandum to evidence the fact that plaintiff employed defendant to render the alleged services.

Students should note that neither a nondescript "thank you" note nor a check designated as a gift qualifies.

At Last Naturals, Inc. v. Feiner, NY Slip Op 05211 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is account stated.

Contempt powers.

Practice point: Supreme Court is vested with authority to adjudicate a party in contempt, pursuant to Judiciary Law 752[A].

Students should note, however, that a party's resorting to a contempt motion on a routine discovery matter, absent application for a remedy under CPLR 3126, is improper.

Lopez v. New York City Transit Authority, NY Slip Op 05182 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of frauds.

Student fights.

Practice point: The school has no duty to notify a parent about a fight between two students when the school has already affirmatively addressed the misconduct.

Students should note that the school normally has no duty of care to a student injured off school grounds.

Stephenson v. City of New York, NY Slip Op 05178 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is contempt powers.

Punitive damages.

Practice point: They are available only when defendant’s behavior evinces a high degree of moral turpitude, and is so wantonly dishonest as to imply a criminal indifference to civil obligations.

Students should note that they are not available in an action sounding in ordinary fraud and deceit.

Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 04760 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is student fights.

Notice of claim.

Practice point: The requirement of filing a notice within 90 days as a condition precedent to bringing suit against a community college of the City University of New York (CUNY) applies to all claims against the college, not just those sounding in tort and wrongful death.

Students should note that the court cannot extend the filing time beyond the statutory limitation.

McKie v. Laguardia Community College, NY Slip Op 04755 (1st Dept. 2011).

Here is the decision.

Monday’s issue is punitive damages.

Employment reviews.

Practice point: A breach of confidentiality claim cannot be based on a review-related discussion of the employee’s test scores.

Students should note that the common interest privilege which attaches to a review-related discussion of the employee’s poor performance cannot be defeated by the employee’s conclusory allegations of malice.

Panghat v. New York Downtown Hospital, NY Slip Op 04818 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is notice of claim.

Notice of entry.

Practice point: The New York State Court Electronic Filing (NYSCEF) site’s transmission of the notice to email service addresses does not constitute service, pursuant to 22 NYCRR 205.b[h][3].

Students should note that one party must serve the other with notification of the entry, expressly stating that the transmittal constitutes notice.

Fazio v. Costco Wholesale Corp., NY Slip Op 04740 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is employment reviews.

Post-judgment interest.

Practice point: When found liable in a tort action, the Port Authority is treated as a private corporation, pursuant to McKinney's Unconsolidated Laws of NY § 7106, and the fixed rate of 9% applies, pursuant to CPLR 5004.

Students should note that, pursuant to § 2501, public corporations are entitled to specialized rate provisions.

Nash v. Port Auth. of N.Y. & N.J., NY Slip Op 04597 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is notice of entry.

Legal malpractice.

Practice point: If the underlying action was time-barred, as a matter of law, the attorney's negligence was not a proximate cause of the alleged injuries, and the action will be dismissed.

Students should note that plaintiff must plead and prove actual and ascertainable damages as a result of the attorney's negligence.

Dempster v. Liotti, NY Slip Op 04408 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is post-judgment interest.